MH

Midterm_Review

Chapter 2: Charter Rights and Freedoms

Limitations on Charter Rights

  • Section 1: Government can interfere with rights and freedoms if justified in a free and democratic society.

  • Section 7: Permits government interference with life, liberty, and security of the person, provided it follows fundamental justice.

    • Procedural fairness is a key requirement stemming from Section 7.

    • Procedural fairness is a responsibility of the government.

    • The government has a duty to follow the Constitution.

Chapter 3: Sources of Law in Canada

Sources of Law

  • Branches of Government:

    • Legislative: Parliament (federal) & Legislative Assemblies (provincial).

    • Executive: Prime Minister and cabinet (federal) & Premier and cabinet (provincial).

    • Judicial: Judges in various courts (appointed federally or provincially).

  • Types of Law Made:

    • Statute Law: Legislation from the Parliament or Legislative Assemblies.

    • Subordinate Legislation: Regulations made under authority of legislation.

    • Case Law: Developed from court decisions.

Constitution – The Division of Powers

Division of Powers

  • Constitution Act, 1867, and the Charter limit the supremacy of Parliament.

  • Sections 91 and 92 allocate powers between federal and provincial governments:

    • Provinces can establish rules in areas they govern.

    • The federal government has exclusive powers in its jurisdictions.

  • Judges enforce compliance with the Constitution by striking down non-compliant laws.

Constitutions – Role of Judges

Judicial Role

  • Judges ensure laws comply with the Constitution by:

    • Assessing if legislation falls within the authority of either the provincial or federal government (Sections 91 and 92).

    • Determining if procedural fairness and other Charter rights are upheld (e.g., Section 7).

Common Law System: Precedent and Stare Decisis

Court Hierarchy in British Columbia

  • Provincial Court: Handles less serious matters.

  • Supreme Court of British Columbia: Deals with more serious cases and appeals from the Provincial Court.

  • British Columbia Court of Appeal: Handles appeals from the Supreme Court of BC.

  • Supreme Court of Canada: Final court of appeal from provincial courts.

Chapter 4: Alternative Dispute Resolution (ADR)

ADR Methods

  • Negotiation: Parties decide on the resolution without third-party help.

  • Mediation: A neutral third party helps the disputing parties reach an agreement.

  • Arbitration: A third party makes a binding decision on the dispute.

Advantages of ADR

  • Maintains control for the parties.

  • Reduces delays and distractions.

  • Generally, less expensive than court litigation.

  • Preserves goodwill between parties and keeps disputes private.

Disadvantages of ADR

  • Potential for lack of judicial fairness and impartiality.

  • Courts can pressure parties for information more effectively.

  • ADR decisions may lack enforceability.

  • No public record of the dispute or decisions.

Civil Litigation

Overview of Civil Litigation

  • Trials are public; justice must be transparent.

  • Equal access to courts is guaranteed for all litigants.

  • Decision based on the balance of probabilities (more likely true than false).

Pre-Trial Procedures

  • Discovery: Includes document disclosure and verbal examination of witnesses.

  • Settlement Offer: Any party can propose a settlement to resolve the matter.

Civil Litigation Remedies

  • Damages: Monetary compensation can be:

    • General: For pain and suffering or future losses.

    • Special: For costs incurred before the trial.

    • Punitive: To punish the wrongdoer or prevent ongoing violations of rights.

Regulatory / Administrative Bodies

Structure and Function

  • Regulatory bodies operate under the executive branch, responsible for public administration.

  • Complaints against regulators are typically handled by administrative tribunals (e.g., Labour boards, Human Rights commissions).

Review of Tribunal Decisions

  • Tribunal decisions can be reviewed by courts for:

    • Procedural fairness compliance.

    • Adherence to jurisdictional limits.

Natural Justice

  • Derived from Section 7 of the Charter, rules include:

    • Advance notice of decisions.

    • Opportunity for individuals to present their case before decisions are finalized.

    • Decisions must be made by impartial decision-makers.

Chapter 5: Intentional Torts

Assault and Battery

  • Assault: Actions creating apprehension of imminent harmful contact.

  • Battery: Intentional unwanted physical contact does not require intent to harm.

  • Intent must originate from the person’s conscious mind.

Defamation

  • Elements include:

    • A defamatory statement affecting the reputation.

    • Reference to the plaintiff and publication to a third party.

    • Innuendo: Contextual meaning may suffice for defamation beyond literal interpretation.

Defamation Defences

  • Justification: Truth is a defence against defamation claims.

  • Qualified/Absolute Privilege: Certain communications are privileged in specific contexts.

  • Fair Comment: Opinions on public interest content may not be defamatory.

Private Nuisance

  • Interference with use/enjoyment of property or damage to another’s property.

  • Substantial & unreasonable interference criteria include noise, pollution, etc.

Trespass to Chattels, Conversion, and Detinue

  • Trespass to Chattels: Physical interference with someone else’s goods.

  • Conversion: Intentional appropriation of goods for personal use, includes theft.

  • Detinue: Wrongful possession of goods where return is refused.

False Imprisonment

  • Unlawful and intentional constraint on a person's freedom.

Chapter 6: Negligence

Negligence Elements

  • Duty of Care: Did the plaintiff owe the defendant a duty?

  • Standard of Care: Was the standard of care met?

  • Causation: Was there a direct link between actions and injuries?

  • Remoteness of Damages: Were the damages predictable and not too remote?

Defences to Negligence

  • Voluntary Assumption of Risk: The plaintiff knowingly accepts risks.

  • Contributory Negligence: Responsibility shared based on fault.

  • Illegality: If the plaintiff was engaged in illegal activity, their claim may be barred.

Chapter 7: Contract Formation

Essentials of a Contract

  • Consensus: Must include an offer and acceptance without new terms.

  • Consideration: Both parties must provide value in the agreement.

Offer and Acceptance

  • Offers can be revoked, but must be communicated unless an option contract exists.

  • Invitations to treat are not valid offers.

Consideration Guidelines

  • Must involve something of value, excludes prior obligations.

  • New obligations introduced in modifications must also be supported by consideration.